There are methods you can use to leverage the rules of civil procedure in your case to do more than just file your 2255 Writ and wait for the judge to give an order. These methods can include things such as post-judgment discovery. You’ve already been convicted, so it’s not the same kind of discovery that was happening when you got discovery from your attorney or your attorney received discovery from the government. It’s a different kind of discovery where you’re asking the court to allow you to compel the government or an individual to give you information that you don’t have.
Suppose that you were never able to get the file from your defense attorney or the government, and so instead you go to the court and file your 2255 motion. The government can then be compelled to turn over the police reports, body cam footage, lab reports, and similar documents or records. These are all things that you can do to go through the process.
When you’re thinking about wanting to get something done in the post-conviction writ process, think about the fact that you’re not limited to simply filing something and hearing what the court has to say; you can do some discovery where you obtain information, inspect premises, or do other similar forms of discovery. As long as the discovery you are conducting is relevant and the court needs to see the evidence, it is something that you can pursue.
You may be wondering why you would follow civil procedure when you are involved in a criminal case. Well, when you file a motion to vacate the sentence under a 2255 Writ, it is effectively a civil procedure you are going through. You’ve already gone through your criminal case, and now you’re filing a civil case to attack your criminal case. For these reasons, despite your subject’s case being a criminal case, the rules of civil procedures still apply.
This also includes things like summary judgment. For example, if everyone agrees on the facts of what happened and the government failed to produce some certain item that was exculpatory, you can say that in your motion, that the government agreed in your response that they failed to produce the exculpatory evidence. At this point, the question becomes about how the law applies to your case rather than what happened in your case.
Let’s say the law states that the unproduced evidence was exculpatory, it was withheld and it was material to your conviction, and therefore it should have been produced in the first place. At this point, you can move for a summary judgment and ask the court and judge, and they may not need any other information. You can make a ruling on these facts. It’s a more streamlined process given that you don’t have disputed facts and thus don’t need a hearing.
Often the government will do this in their summary response and just ask for a summary judgment from the court. The government will claim in its statement that there is no dispute on the facts or that the disputes on the facts are irrelevant. In this way, they try to claim victory and deny you freedom. However, you can do those same things, so it is something worth thinking about as you pursue your 2255 Writ.
About The Attorney
Jacob Blizzard is board certified in both criminal law and criminal appellate law.
He regularly practices in the areas of state and federal criminal defense, criminal appeals, post conviction writs of habeas corpus.
In Texas, there are more than 100,000 attorneys licensed to practice, but only 7,450 are board certified.
In the entire State of Texas, as of the 2019 certification year, there were only 87 attorneys board certified in both criminal law and criminal appellate law, making Mr. Blizzard one of 0.087% of attorneys in Texas to hold both of those certifications.